Christmas has come and gone and hopefully went off without a hitch for your business. It’s also a time when our workplace relations team assists with lots of queries around conduct at Christmas parties or during the off-season that have led to complaints from staff which may require investigation.
If an investigation has not been carried out correctly, things can easily get out of hand and lead to unfair dismissal, general protection claims or workers’ compensation claims.
These processes cost businesses time and money they often can’t afford. They can also have a huge impact on your workplace culture. None are a particularly good way to start the new calendar year.
On the other hand, if you get an investigation right, you can swiftly and properly deal with problems and demonstrate to your staff that you care about them and will manage any workplace issues effectively.
The main mistakes to avoid when attempting to investigate a complaint include:
1. Failing to ensure the process is fair
It is not uncommon for the Fair Work Commission (FWC) to find that an employee has been unfairly dismissed due to inadequacies with an investigation process.
If an investigation does not satisfy the requisite standard to afford the respondent procedural fairness, the FWC may conclude it is inadequate and find the dismissal unfair.
Common processes often overlooked during an investigation that may result in a dismissal being unfair are:
- whether or not the respondent has been made aware of all complaints and allegations made against them with sufficient detail so they understand the nature of those allegations and are given an opportunity to respond
- whether witnesses have been interviewed to test any evidence given by a complainant
- whether there has been sufficient impartiality
- whether there has been unnecessary delay
- whether there have been other employees who have been treated in a similar fashion for a different result in the past.
There are also FWC decisions where, even though the FWC has acknowledged there have been exceptional circumstances – such as a toxic environment that a business was acting to address – the FWC finds the employees have the right to procedural fairness.
Essentially, the ends do not justify the means.
It is important for employers to conduct a full investigation process.
This will include tasks such as:
2. Failing to ensure that process is thorough and consistent
In the FWC decision of White v Asciano [2015] FWC 7466, an employee was reinstated and awarded $25,000 for lost income after an investigation process was held to be flawed. This was despite there being evidence the employee had engaged in a safety breach.
The employee – a train driver – was involved in an incident where he left his co-driver behind at a station after she said to him “I’m going to pee”.
The employer’s investigation concluded that the employee had left his co-driver behind deliberately and that he had been recorded speeding multiple times during the journey.
The FWC heard evidence that it was common practice for employees to use the on-board toilet while the train was moving and that the co-driver had done so on previous occasions.
Critically, the investigation report quoted the co-driver as saying “I’m going to the toilet, don’t leave me”.
Evidence revealed that someone had incorporated that wording, instead of “I’m going to pee”, to “convey the negative impression” that the employee had deliberately left his co-driver behind and the employer relied on this statement when terminating the employee.
The FWC held that reliance on such a critical error, even if the error had been perfectly innocent, meant that the employer’s decision to dismiss the employee could not be allowed to stand and the FWC held the termination to be unfair and ordered reinstatement of the employee.
While not specifically a party scenario, this decision highlights the importance of ensuring that any investigation process is thorough, and the information gathered is accurate. Do not miss small details or put words in witnesses’ mouths.
Do not miss small details or put words in witnesses’ mouths.
3. Not having a legitimate reason for investigating
An investigation process should not be a witch hunt. It should be undertaken objectively with the sole purpose of finding out whether the alleged conduct has or has not occurred.
Investigations should not be used as an avenue to find ways to terminate employees that you no longer want in the organisation, but who have no performance management or conduct issues. Investigations should only be undertaken where there is a legitimate reason to do so.
4. Not remaining impartial
There are also difficulties of remaining impartial and objective when conducting an investigation if you have a vested or emotional interest in the business or personal relationships with those involved. Further, it can be a daunting task to robustly and thoroughly investigate allegations made against a more senior employee within an organisation. It is also important that the ultimate decision maker is separated from the investigation process.
If you aren’t certain you or someone else within the organisation can investigate a complaint impartially, then it should be done by an experienced external investigator.
Investigations can be tricky business, and our team has experience in ensuring that they are conducted properly. Alternatively, we have coached many CCI Members in the background in order to mitigate the risks associated with the investigation process.
Ryan Martin is Manager of CCIWA’s Workplace Consulting team.
